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2004 Supreme(AP) 1426
Andhra Pradesh High Court
Judges : P.S.NARAYANA
Mahesh Manchandar Garge - Appellant
Versus
State OF A.P. - Respondent
Decided On : 11-26-04
Headnote:
Criminal Produce Code, 1973 - Sections 362 and 482 - Non-payment of fine amount at the time of bail - Dismissal of appeal - Enlargement of time - Saving of inherent powers of High Court - Counsel representing petitioners-appellants-A. 2 to A. 5 would submit that counsel for these petitioners had not mentioned about non-payment of fine amount at time of bail and other relevant facts relating to payment of fine amount - Learned counsel also submits that in view of said lapse, Judgment was delivered by this Court wherein findings were confirmed under modifying sentence - Held, Court has no means to know about death or otherwise of accused - Then informed by the counsel about the death of the accused, it cannot, in its judicial discretion, proceed with hearing of appeal without recording abatement - If it is not informed about death and it accordingly proceeds to decide and record its order, the error is not in its judgment but in absence of information by counsel representing party and in its ignorance about death - Pronouncement against a dead person, as I have already noticed, in such a situation, is not act of judicial discretion but mistake due to clerical recalcitrance on part of parties, who alone could/can inform it about such a death - Division Bench of Patna High Court had arrived at the said conclusion - Bar imposed by section 362 is clearly operative - It is needless to say when there is a specific bar imposed on the Court, the inherent under Section 482 of Code also cannot be invoked - Criminal Miscellaneous Petition dismissed.
( 2 ) SRI Ravindranath, the learned Counsel representing the petitioners-appellants-A. 2 to A. 5 would submit that the counsel for these petitioners had not mentioned about non-payment of fine amount at the time of bail and the other relevant facts relating to the payment of fine amount. The learned counsel also submits that in view of the said lapse, the Judgment was delivered by this Court wherein the findings were confirmed under the modifying the sentence. In view of the same, appropriate orders may have to be passed rectifying the said mistake which had crept in the judgment. The learned Additional Public Prosecutor based the same on the ground that this would amount to alternatives of judgment which is impermissible under section 326 of the Code and hence, application itself is not maintainable.
( 3 ) HEARD both the Counsel. This Court in Criminal Appeal No. 794, 815 and 1143 of 1999 made Common Judgment and the operative portion of the judgment reads as here under: in view of the facts and circumstances and taking into consideration of the evidence available on record, the sentence of imprisonment imposed as against Accuse Nos. 2 and 3 is modified to a period of five (5) years and as far as Accused No. 1 is concerned, he is sentenced to undergo R. 1 for 2 years and likewise Accused Nos. 4 and 5 also are sentenced to undergo R. 1 for a period of three (3) years. The further sentence of imposition of fine of Rs. 5,000/- in default to undergo S. I. for one year is hereby confirmed.
( 4 ) EXCEPT the modification of all the sentences, in all other particulars, the findings of the learned Judge are hereby confirmed. The appeal shall stand dismissed subject to afore said modification. Section 326 of the Code dealing with the Court not to alter judgment reads as follows: court not to alter Judgment: Save as otherwise provided by this Code or by any other law for the time in force, no Court, when it has signed its judgment or final order dispensing of a case, shall alter or review the same except to correct a clerical or arithmetical error
( 5 ) AN attempt was made by the learned Counsel to bring the present application under Section 482 of the Code. Section 482 of the Code dealing with the saving of inherent powers of High Court reads as hereunder: saving of inherent powers of High Court-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give affect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to the ends of justice. In the present case, it had been contended by the learned counsel for the petitioners that there is a mistake on the part of the counsel in bringing certain facts to the notice of the Court and hence, the necessary clarification relating to the payment of fine amount had not been specified in the judgment. Virtually, what is prayed for in the present application is for the alteration of the sentence which would amount to judicial determination. In the light of the clear language employed in Section 362 of the Code, the same is impermissible.
( 6 ) IN Bangaru Reddy and another v. State (AIR 1959 AP 95) while dealing with the aspect of clerical error under 1898 Code, the learned sin
